Rajasthan State Road Transport ... vs Gopal Singh And Anr. on 24 October, 1997

[Cites 38, Cited by 15]

Rajasthan High Court - Jaipur

Rajasthan State Road Transport ... vs Gopal Singh And Anr. on 24 October, 1997

Equivalent citations: (1999)IIILLJ810RAJ, 1998(1)WLC1, 1997(2)WLN658

1. The reference is at the instance of the learned single Judge in S. B. Civil Writ Petition No. 6345/ 1992 and S. B. Civil Writ Petition No. 3784/1993. In the first writ application filed by the Rajasthan State Road Transport Corporation ('RSRTC' for short hereinafter) the award dated December 3, 1991 as passed by the Labour Court, Bhilwara in Labour Case No. 9/1991, formerly numbered as 39/1987 has been impugned by the RSRTC whereby the learned Judge, Labour Court having found the order of termination dated October 8, 1994 to be unsustainable directed reinstatement of the workman Gopal Singh treating his case to be one of continuous employment and observed that the said Gopal Singh would be entitled to 50% of his backwages till the date of the award and would be entitled to full wages thereafter. His two annual grade increments were withheld. The, RSRTC was also declared to be entitled to deduct a sum of Rs. 8000/- to which extent it sustained as a loss on account of the accident. The workman Gopal Singh also challenged the said award in S. B. Civil Writ Petition No. 3784/1993 wherein he prayed inter alia for a relief to the effect that he should be exonerated from all the charges and he was liable to be reinstated by the Court treating him to be in continuous service with all consequential benefits. His contention inter alia was that the finding of misconduct recorded against him by the Labour Court was not sustainable in the eye of law.

2. It would be necessary for us to refer to the background of the case leading to the reference before the Labour Court. Gopal Singh was a driver in the service of the RSRTC. He was charge-sheeted on November 22, 1982 by the Divisional Mechanical Engineer, Ajmer for an alleged misconduct committed by him on November 8, 1982 while driving the Bus No. RSB 4509 without keeping a reasonable distance between the vehicle he was driving and a truck which was going ahead of it. It is alleged that Gopal Singh rashly and negligently collided the Bus he was driving with a truck with the result that there was a damage caused to the Bus to the tune of Rs. 8,000/- and as a result of the collision many of the passengers travelling in the bus received minor injuries. The said misconduct allegedly caused loss of reputation to the RSRTC, inasmuch as, the prestige of the RSRTC about its management in running the Buses was lowered down in the estimation of passengers travelling on the Bus as well as before the public at large who saw the accident caused by rash and negligent driving of the Bus by Gopal Singh. There was a domestic enquiry wherein the Enquiry Officer found Gopal Singh guilty. The Disciplinary Authority thereupon passed an order of punishment of removal from service. Aggrieved by the order of removal from service dated October 8, 1984 (Annexure 7 to the writ application) Gopal Singh filed an appeal before the Appellate Authority which was dismissed by the Appellate Authority on February 27, 1985 (vide Annexure 8 to the writ application). Thereafter an industrial dispute was raised and on reference being made by the State Government under Section 10 of the Industrial Disputes Act, 1947, both the parties filed their statements of claims and reply thereto. The Labour Court vide its order dated March 3, 1989 (Annexure 11 to the writ application) held that the domestic enquiry against Gopal Singh was unfair and was conducted against the principles of natural justice since despite Gopal Singh making a request for supplying of two copies of spot inspection report Annexure P/2 and P/5 which were prepared on the spot after the accident in question, these documents were not made available to him by the RSRTC. After passing of the order dated May 3, 1989 (Annexure-11) by the Labour Court the RSRTC made a request before the Labour Court to prove the charges levelled against Gopal Singh and such a prayer was allowed by the Labour Court. The RSRTC adduced evidence in support of the charges levelled against Gopal Singh. The Labour Court after evaluating the gravity of misconduct held that the punishment of removal from service of Gopal Singh was harsh in relation to the misconduct proved by the RSRTC and in exercise of its discretion under Section 11A of the Act set aside the punishment of removal from service imposed by the Disciplinary Authority and instead imposed punishment of withholding of two annual grade increments with cumulative effect, awarded Rs. 8,000/- as damages to the RSRTC and reinstated Gopal Singh back in service with continuity in service along with 50% backwages with effect from October 8, 1984 till the date of the passing of the award dated December 3, 1991 (vide Annexure 18 to the writ application).

3. The learned single Judge took into consideration Division Bench decisions of our Court in the case of Rajasthan State Road Transport Corporation v. Habib Khan reported in (1993-II-LLJ-328) (Raj) and Rajasthan State Road Transport Corporation v. Judge, Industrial Tribunal, Bikaner reported in (1995-I-LLJ-357) (Raj). Another single Bench judgment in the case of Rajasthan State Road Transport Corporation v. Kailash Chandra Sharma reported in (1995-I-LLJ-268) (Raj) was also taken into consideration.

4. It was contended on behalf of the RSRTC before the learned single Judge inter alia that once the guilt of the delinquent workman is found by the Labour Court/ Industrial Tribunal it was not open for the said Court or the Tribunal to interfere with the quantum of punishment. The discretion under Section 11A of the Industrial Disputes Act, 1947 however could be sparingly exercised, only in case where the Court chose to interfere in matters of excessive punishment which was harsh and outweighed the gravity of the offence.

5. The learned Advocate for the respondent workman Gopal Singh however contended that under Section 11A of the Industrial Disputes Act a wide discretion has been vested in the Tribunal in the matter of awarding relief according to the circumstances of the case and the High Court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution did not possess such power and jurisdiction to question the award as given by the Labour Court and cannot substitute its own verdict in preference to the one chosen by the Labour Court or the Tribunal as regards the quantum of punishment. The decision in Jitendra Singh Rathore v. Baidya Nath Ayurved Bhavan Ltd. reported in (1984-II-LLJ-10) (SC) was also cited in support of this contention.

6. The other contention resorted to by the workman concerned was that if the Labour Court after evaluating the gravity of misconduct held that punishment of removal from service is disproportionately harsh in relation to the misconduct and in exercise of its discretion under Section 11A of the Industrial Disputes Act passed an order reinstating the workman into service then this Court in exercise of its power under Articles 226 and 227 of the Constitution of India would not re-examine the question of adequacy or inadequacy of material for interference in the order passed by the Labour Court/Tribunal. In this context the decision in Hindustan Machine Tools Ltd., Bangalore v. Mahommed Usmaan reported in (1983-II-LLJ-386) (SC) was relied upon.

7. The third contention on behalf of the workman was to the effect that in similar circumstances where a Bus driver was found under influence of liquor while on duty and put the safety of passengers in the vehicle in danger, the Labour Court in exercise of its jurisdiction under Section 11A of the Industrial Disputes Act reduced the punishment of dismissal and passed an order for reinstatement of workman, as according to the Labour Court it was found harsh and heavy. The case of Jaswant Singh v. Pepsu Roadways Transport Corporation reported in (1984-I-LLJ-33) (SC) was an illustration on the point. In Baldeo Singh v. Presiding Officer, Labour Court, Patiala, reported in (1995-III-LLJ (Suppl)-462) (SC) the Supreme Court while interpreting the scope of Section 11A of the Act maintained the order passed by the Labour Court granting relief of reinstatement with continuity of service. In that case also a Bus Driver was charge-sheeted for causing damage to the Punjab Roadways to the extent of Rs. 22.50 by way of two miles short bus trip. After enquiry into the charges and after giving him an opportunity of hearing, the management dismissed him from service holding that the charges have been proved. In that case the Labour Commissioner referred the dispute regarding justiflability of the order of termination of service to the Labour Court. The Labour Court after hearing the parties and considering the evidence found that the workman failed to show that the enquiry held was neither fair nor proper. It was submitted on behalf of the workman who was a Bus driver that the punishment of termination of service awarded was not in consonance with the nature and gravity of charges levelled against the workman and the workman ought to have been given a lesser punishment. The learned Tribunal after considering this submission made an order of reinstatement with continuity of service but without backwages. The Supreme Court found the order of the Tribunal in consonance with the provisions of Section 11A of the Industrial Disputes Act which empowers the Tribunal to make an award directing reinstatement of the workman on such terms and conditions as it thought fit or give such other relief to the workman including the award of lesser punishment in lieu of discharge or dismissal as the circumstances of the case require. No infirmity was found by the Supreme Court in reducing the punishment of termination. It was further urged on behalf of the workman that if in exercise of power under Section 11A of the Act the Labour Court approved the finding of misconduct found by the Disciplinary Authority or itself reached a conclusion about the misconduct of the workman, that itself would also not be a ground for non-interference with the order of discharge or dismissal from service by the Labour Court. In support of the said contention reliance was placed on a decision of the Supreme Court in the case of Scooter India Limited v. Labour Court, Lucknow reported in (1989-I-LLJ-71) (SC). In that case, the order of termination passed by the Disciplinary Authority was set aside by the Labour Court and there was an order of reinstatement of the employee with 75% back wages on the ground that the erring workman should be given an opportunity to reform himself and prove himself to be a loyal and disciplined employee of the Company. The aforesaid reformative theory in the case of Scooter India Ltd. (supra) giving an opportunity to the employee to reform himself and prove to be a loyal and disciplined employee of the Company which was recorded by the Labour Court was affirmed by the High Court of Allahabad as well as by the Supreme Court. It is pertinent to mention that the Award under Section 6 (2-A) of the U. P. Industrial Disputes Act is analogous to Section 11A of the Industrial Disputes Act, 1947.

8. The Corporation on the other hand relied upon the case of Fire Stone Tyre and Rubber Company v. Management reported in (1973-I-LLJ-278) (SC). The learned single Judge was of the opinion that the decision rendered by two Division Benches in the cases of Habib khan (supra) and Judge, Industrial Tribunal, Bikaner (supra) as well as the decision rendered by the learned ingle Judge in the case of Kailash Chandra Sharma (supra) require reconsideration.

9. The learned single Judge observed that even though it was true that in the case of Habib Khan (supra), the learned Judges constituting Division Bench had noticed the decision rendered by the Supreme Court in the case of Jitendra Singh Rathore v. Shri Baidya Nath Ayurved Bhavan (supra) in para 12 of its judgment, but instead of following the ratio laid down in paragraph 4 of the said judgment set aside the punishment awarded by the Labour Court in exercise of its power under Section 11A of the Industrial Disputes Act and substituted its own opinion about the punishment in place of the punishment awarded by the Labour Court. It maintained the order of dismissal passed by the Disciplinary Authority instead of remitting the case to the Labour Court for passing appropriate punishment. It was observed in Jitendra Singh Rathore's case (supra) that even though under Section 11A of the Industrial Disputes Act advisedly wide discretion is vested in the Tribunal in the matter of awarding relief according to the circumstances of the case, the High Court does not enjoy such powers even though exercising its jurisdiction as a superior Court by way of a right of superintendence. The High Court is undisputably entitled to scrutinize the orders of the Tribunal within the well accepted limitations and, therefore, it could in an appropriate case quash the award of the Tribunal and thereupon remit the matter to it for fresh disposal in accordance with law after passing directions, if any, but the High Court is not entitled to exercise the powers of the Tribunal and substitute an award in place of one made by the Tribunal as it can do in the case of an appeal where such a jurisdiction vests in the High Court so to do.

10. The learned single Judge was of the opinion that the ratio as propounded by the Supreme Court in Jitendra Singh's case (supra) has not undergone any change by way of subsequent decision nor was it interpreted subsequently or explained by the Supreme Court in a different manner. Accordingly, the learned single Judge held that the two decisions rendered by our Division Bench in the case of Habib Khan (supra) and Judge, Industrial Tribunal, Bikaner (supra) as well as the single Bench judgment of our Court in the case of Kailash Chandra Sharma (supra) require reconsideration.

11. The learned single Judge further observed that in Habib Khan's case (supra), the order as passed by the learned single Judge was set aside by the Division Bench in special appeal and the award passed by the Tribunal also stood set aside and the Division Bench substituted its own punishment by way of dismissal by restoring the punishment as passed by the Disciplinary Authority. In the case of Judge, Industrial Tribunal, Bikaner (supra) also, the same procedure was followed. The order of the learned single Judge as well as the order of reinstatement passed by the Labour Court stood set aside and the special appeal was allowed by substituting the Division Bench's own order of punishment of dismissal from service instead of remitting the question about adequacy or inadequacy of the punishment to the Labour Court. In the case of Kailash Chandra Sharma (supra) also, the order of reinstatement as passed by the Labour Court was set aside and in its place the High Court substituted its own order of punishment of removal without remitting the question of punishment with High Court's own observations, or without passing any directions to consider the adequacy or inadequacy of punishment to the Labour Court.

12. The learned single Judge's observations on a close scrutiny of the decision rendered by the Division Bench of our Court in the case of Habib Khan (supra) indicates that the said decision is based on the decision of the Supreme Court in the case of Fire Stone Tyre and Rubber Company v. Management, (supra) which speaks of a law before Section 11A was brought on the statute book as would be evident from paragraphs 28 and 29 of the said decision in the case of M/s. Fire Stone Tyre and Rubber Company (supra). A scrutiny of the decision rendered by the Division Bench of our Court in the case of Judge, Industrial Tribunal, Bikaner (supra) also according to the learned single Judge, revealed that it was also based on the judgment of the Supreme Court in the case of M/s. Fire Stone Tyre and Rubber Company (supra). According to the learned single Judge's own observations, the Division Bench judgments of this Court in the case of Habib Khan (supra) and Judge, Industrial Tribunal, Bikaner (supra) did not notice and/or failed to appreciate the ratio of the Supreme Court decisions in the case of Management of Hindustan Machine Tools Ltd. Bangalore v. Mohammed Usmaan (1983-II-LLJ-386) (SC) rendered by three Hon'ble Judges of the Supreme Court as well as the decisions in Scooter India Ltd., Lucknow v. Labour Court, Lucknow, (supra). Baldev Singh v. Presiding Officer, Labour Court, Patiala, (1995-III-LLJ (Suppl)-462) (SC) Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, (1980-I-LLJ-137 (SC) and State through (CBI), New Delhi v. S.J. Choudhary AIR 1990 SC 1050. The learned single Judge in Rajasthan State Road Transport Corporation v. Kailash Chandra Sharma (supra) has also not noticed the other decisions except the one in State through (CBI), New Delhi v. S. Choudhary (supra).

13. The learned single Judge accordingly expressed the view that the decision rendered by the Hon'ble Judges of the Supreme Court in the case of Jitendra Singh Rathore (supra) and the decisions rendered by the Division Bench of our Court in the case of Habib Khan (supra) and Judge, Industrial Tribunal, Bikaner (supra) as well as the decision rendered by the learned single Judge in the case of Kailash Chandra Sharma (supra) require reconsideration. The learned single Judge thought that the matter should be referred to a larger Bench since nothing has been brought to his notice that the decisions rendered by the two Division Benches of our Court as well as the learned single Judge of our Court are per incuriam.

14. Referring to the decision of the Supreme Court in the case of Rajesh Kumar Verma v. State of Madhya Pradesh regarding practice and procedure about the precedents which are to be followed by the High Court reported in AIR 1995 SC 1421 the learned single Judge quoted the observations of the Supreme Court thus at page 1422-1423 of AIR:

"In the group of writ petitions which came up for decision before the Division Bench of the High Court, the High Court placing special reliance on this Court's decision in Director General, Telecommunication v. T.N. Peethambaram came to the conclusion that it was not open to the State Government to reduce the minimum qualifying marks in General English and the seats made available to SC/ST candidates by virtue of the said relaxation would revert to the general category students. It may here be mentioned that in taking this view the Division Bench departed from the view taken by another Division Bench of the same High Court in Amrit Bajpal v. State of M. P. which judgment is excluded as Anx. III at page 42 of the paper-book. This decision was brushed aside on the plea that it had not taken into consideration the decision rendered by this Court in Peethambaram case. Needless to say that in such a situation the proper course is to refer the matter to a larger Bench, a course which the subsequent Division Bench did not follow."

15. The learned Single Judge accordingly thought that there is no other alternative except to refer the case of Habib Khan (supra), Judge, Industrial Tribunal, Bikaner (supra) and RSRTC Kailash Chandra Sharma (supra) to a larger Bench for reconsideration.

16. On behalf of the respondent-workman it was submitted that in the case of Management of Hindustan Machine Tools Ltd., Bangalore v. Mohammed Usmaan, (supra) three Hon'ble Judges of the Supreme Court expressed the opinion that if the Labour Court after evaluating the gravity of misconduct held that the punishment of termination of service is disproportionately heavy in relation to misconduct and exercises its discretion, then the Supreme Court in the absence of any important legal principle could not undertake to re- examine the question of adequacy or inadequacy of material for interference with the order of punishment passed by the Labour Court. It was further contended by the respondent-workman that even though Section 11A is a beneficial piece of legislation enacted in the interest of employees, if the High Court is not satisfied with the order of reinstatement passed by the Labour Court in favour of an employee even (sic.) then it should not be interfered with.

17. In the decision rendered by three Hon'ble Judges of the Supreme Court in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, (supra) two Hon'ble Judges observed that amended Article 226 would enable the High Court to interfere with an award of industrial adjudication if that is based on a complete misconception of law or if it is based on no evidence or that no reasonable man would come to the conclusion to which the arbitrator or the Tribunal has arrived at. The majority judgment in para 82 approved the decision rendered by Gujarat High Court in Navinchandra Shankerchand Shah v. Manager, Ahmedabad Cooperative Department Stores Ltd., reported in 1978 19 Guj LR 108 holding that the writ power is larger in a given case to rectify illegality and injustice even if its power is discretionary as decided cases have repeatedly laid down. The Hon'ble Supreme Court thus overruled the proposition as regards invalidity of the High Court's order for want of jurisdiction, while KOSHAL, J, in his dissenting judgment in paragraph 180 of the aforesaid judgment was of the view that the High Court while discharging its functions under Article 227 of the Constitution does not sit as a Court of Appeal over the award of the arbitrator or the Tribunal but exercises limited jurisdiction which extends only to seeing whether the arbitrator or the Tribunal has functioned within the scope of his/its legal authority.

18. The learned single Judge further expressed the view that as to whether the latest judgment of a coordinate Bench of the Supreme Court must have pre-eminence irrespective of any other consideration is also an intricate question of law which requires consideration by a larger Bench. The learned single Judge expressed the view that when a principle stands upheld by the Supreme Court or some practice is deprecated by it, it should be the duty of this Court to follow it up since the observations of the Supreme Court have a binding force within the meaning of Article 14 of the Constitution of India.

19. In Bhagirathmal Rainwa v. The Judge, Industrial Tribunal, Jaipur, (1995-I-LLJ-960) (Raj) where it was a case of misconduct of a Bus Conductor who was purportedly charged of collecting fares from the passengers without issuing tickets and there was evidence of misconduct which was led before the Tribunal and the Tribunal after evaluating evidence ordered penalty of removal and the order did not suffer from any legal infirmity and the Tribunal carefully applied its mind to the circumstances, a learned single Judge of our Court held that the circular issued by the Corporation providing for composition of first four instances of such grave offence as collecting fares from passengers without issuing tickets liable to be admonished as 'misconceived and beyond comprehension', evidencing greatest disservice to the Institution itself. The learned single Judge held that the penalty imposed on the petitioner is not liable to be declared illegal or without jurisdiction even on the basis of the said circular issued by the Rajasthan State Road Transport Corporation. The learned single Judge in this context followed the decision of the Gujarat High Court in Gujarat State Road Transport Corporation v. Jamnadas Beharibhai, 1983 Lab IC 1349, and held that a person who is found guilty of misconduct or misappropriation of public money has no right to be reinstated in service. The learned single Judge in this context followed the decision of Andhra Pradesh High Court in Andhra Pradesh State Road Transport Corporation v. Additional Judge, Labour Court cum-Industrial Tribunal, 1986 (3) FJR 230 ; Municipal Corporation of City of Ahmedahad v. Hussainmiya Chandmiya, 1987 Lab IC 1564; and the earlier decision in Gujarat State Road Transport Corporation v. Jamnadas Behari Bhai (supra) and the Supreme Court decision in D C. Roy v. The Presiding Officer, Labour Court, AIR 1976 SC 1760, where it was observed that a person found guilty of misconduct in relation to dishonesty deserved a punishment of dismissal and in such circumstances such a punishment is neither harsh nor unfair.

20. In Rajasthan State Road Transport Corporation v. Mool Singh, 1995 Lab IC 771, a Division Bench of our Court in a case where the Labour Court finding the workman guilty of charge of misconduct ordered his reinstatement on the reasoning inter alia that in view of overall circumstances and the rising prices and unemployment, the workman deserved one more chance to improve, held that as regards the legality of the award, the reason given by the Labour Court is no reason in the eye of law particularly when the workman had been punished for misconduct on earlier two occasions and the award of the Labour Court was accordingly set aside to the extent of reinstating the workman. The Division Bench in this context followed the decisions in Rajasthan State Road Transport Corporation v. Habib Khan, (supra), Christian Medical College Hospital Employees' Union v. Christian Medical College, (1988-I-LLJ-263) and Rajasthan State Road Transport Corporation, Alwar v. Kailash Chandra Sharma. (supra).

21. In Rajasthan State Road Transport Corporation v. Shri Asrar Mohammad, 1992 WLC (UC) 67, a learned single Judge of our Court observed that the power of the Labour Court under Section 11A of the Industrial Disputes Act is not uncanalised, unguided and unlimited and the Labour Court cannot function arbitrarily and interfere with every decision of the Management regarding dismissal or discharge of the workman, arrived at in the disciplinary enquiry. Before setting aside the order of dismissal or removal from service and awarding a lesser punishment, the Labour Court has to satisfy itself that the punishment imposed by the Management is highly disproportionate to the degree of guilt of the workman concerned and in coming to that conclusion, the Court is expected to give reasons for its decision. Where the Labour Court came to the conclusion that the workman was found guilty previously on nine occasions and the punishment of warning and removal from service were also passed, which fact has been admitted by the workman himself in his statement before the Tribunal, but the Tribunal set aside the order of removal or dismissal and ordered for reinstatement of the workman only on the ground that a last opportunity may be given to him, it was observed that when he did not mend himself on the previous nine occasions and he repeated the same performance, he was not entitled to any leniency or a lesser punishment. It was further observed that the Bus Conductor pocketed the money without issuing tickets to the passengers and his reinstatement would enable him to involve in the same malpractice in future and, therefore, his reinstatement would involve great risk since despite repeated opportunities he could not correct himself.

22. In Christian Medical College Hospital Employees' Union v. Christian Medical College, Vellore Association, (supra) it was observed that the power of the Industrial Tribunal or the Labour Court under the Industrial Disputes Act is not unlimited, unguided and uncanalised. Section 11A of the Act cannot be considered as conferring an arbitrary power on the Industrial Tribunal or the Labour Court. The power under Section 11A has to be exercised judicially and the Industrial Tribunal or the Labour Court is expected to interfere with the decision of a Management under Section 11A only when it is satisfied that the punishment imposed by the Management is highly disporportionate to the degree of guilt of the workman concerned. The Industrial Tribunal or the Labour Court has to give reasons for its decision. The decision of the Industrial Tribunal or the Labour Court is again subject to judicial review by the High Court and the Supreme Court, The Industrial Tribunal or the Labour Court cannot function arbitrarily and interfere with every decision of the Management as regards dismissal or discharge of a workman arrived at in a disciplinary enquiry. The power exercisable by the Industrial Tribunal or the Labour Court cannot, therefore, be equated with the power of 'veto'.

23. In The Gujarat Mineral Development Corporation v. Shri P.H. Brahmbhatt, (1974-I-LLJ-97) (SC) it was observed, that extent of the power of the Labour Court to interfere in the discharge order passed by the employer is limited to such cases where the order is punitive, mala fide, vindictive or arbitrary provided that in such case the employer has not lost confidence in the employee. Although the Supreme Court can interfere under Article 136 when there is excess of jurisdiction or substantial error of law or principle of law or of gross and palpable error resulting in manifest injustice, the Supreme Court can also consider whether the finding is wholly inconsistent with the materials on record or the lower Court has dealt with the evidence in a perfunctory manner.

24. In Rama Kant Misra v. State of Uttar Pradesh, (1982-II-LLJ-472) (SC) it was held that the punishment must be, proportionate to the misconduct and the facts and circumstances of the case must justify dismissal. The dismissal for use of indiscreet, indecent or threatening language to superior only once in the course of long unblemished service was to be held as disproportionately excessive and instead withholding of two increments with future effect was found by the Supreme Court to be proper punishment. It was observed that interference with the Management's decision is called for under certain kinds of dismissal. The power the Tribunal or the Labour Court in this regard under Section 11A of the Industrial Disputes Act, if exercised improperly or unjustifiably, is definitely open to interference by the Supreme Court under Article 136 of the Constitution of India.

25. In State Bank of India v. Samarendra Kishore Endow, (1994-I-LLJ-872)(SC) it was observed that the imposition of appropriate punishment is within the discretion and judgment of the Disciplinary Authority. It may be open to the Appellate Authority to interfere with it but not to the High Court or the Administrative Tribunal for the reason that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 226. The power under Article 226 is one of judicial review. It is not an appeal from a decision but a review of the manner in which the decision was made. The power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the authority after according a fair treatment reaches on a matter which it is authorised by law to decide for itself, a conclusion which is correct in the eye of law. The decision in Bhagat Ram v. State of H. P. (1983-II-LLJ-1) (SC) was explained and distinguished in the said case and it was observed that the said judgment is no authority for the proposition that the High Court or the Tribunal has jurisdiction to impose any punishment to meet the ends of justice. The Supreme Court in Bhagat Ram's case (supra) exercised suitable jurisdiction under Article 136 of the Constitution, but it was observed that the High Court and the Tribunal has no such power or jurisdiction. It was observed that there are certain observations in Union of India v. Tulsiram Patel, (1985-II-LLJ-206) (SC), which appear to say that the Court can interfere where the penalty imposed is arbitrary or grossly excessive or disproportionate or not warranted by the facts and circumstances of the case or the requirements of that particular Government service. The case of Thulsiram Patel (supra) stands on a different footing because it deals with the situation where the employees were removed from service without holding enquiry. The observations made in that case are not relevant to cases where penalty is imposed after regular enquiry. On the same reasoning, the observations made in Shankar Das v. Union of India, (1985-II-LLJ-184)(SC) cannot also be applied. In the facts and circumstances of the case in State Bank of India v. Samarendra Kishore Endow (supra) the punishment of removal imposed on the respondent was found to be harsh, but it was observed that this is a matter which the Disciplinary Authority or the Appellate Authority should conuder and not the High Court or the Administrative Tribunal. The proper course is to send the matter back either to the Disciplinary Authority or the Appellate Authority to impose appropriate punishment. In the facts of the reported case, the Appellate Authority was directed to consider whether a lesser punishment is called for in the facts and circumstances of the case. It was further observed in the reported case that as regards failure to supply the copy to the charged employees of the departmental enquiry report and where the punishment was imposed prior to November 20, 1990, non supply of the copy of the departmental enquiry report to the delinquent employee did not invalidate the enquiry.

26. In Union of India v. B.C. Chaturvedi (1996-I-LLJ-1231) (SC) it held that the judicial review is of decision-making process, but where the findings of the Disciplinary Authority or the Appellate Authority are based on same evidence, the Court/Tribunal cannot reappreciate the evidence and substitute its own findings and it was held that the Court/Tribunal has no power to interfere with the findings of the Disciplinary Authority or the Appellate Authority by reappreciating the evidence which was led in the departmental enquiry. Relying on the decision in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909, it was observed by HANSARIA, J. in said reported case that the mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Absence of provision like Article 142 is not material. The High Courts too can exercise power of review which inheres in every Court of plenary jurisdiction. The power to do complete justice also inheres in every Court, not to speak of a Court of plenary jurisdiction like a High Court. Of course, this power is not as wide as which the Supreme Court has under Article 142. That however is a different matter. If the power of modification of punishment/penalty were to be available to the Supreme Court only under Article 142, a very large percentage of litigants would be denied this small relief merely because they are not in a position to approach the Supreme Court, which may, inter alia, be because of the poverty of the person concerned. Following the ratio of Bhagat Ram v. State of H. P., (supra) Rustom Cavasjee Cooper v. Union of India, AIR 1970 SC 564; and Maneka Gandhi v. Union of India, AIR 1978 SC 597, it was observed that the High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief. In a case of dismissal, Article 21 gets attracted and in view of the interdependence of fundamental rights, the punishment/penalty awarded has to be reasonable and if it be unreasonable, Article 14 would be violated and if Article 14 were to be violated a High Court can take care of the same by substituting, in appropriate case, a punishment deemed reasonable by it. It was further observed that Section 11A of the Industrial Disputes Act confers power on the Tribunal/Labour Court to apply its mind to the question of proportionality of punishment/penalty. If need for maintenance of office discipline be the reason of adopting a strict attitude qua the public servants, discipline has to be maintained in the industrial sector also. The availability of appeal etc. to public servants does not make a real difference as the Appellate Revisional Authority is known to have taken a different view on the question of sentence only rarely. But for the self-imposed limitation while exercising power under Article 226 of the Constitution, there is no inherent reason to disallow application of judicial mind to the question of proportionality of punishment/penalty. But then, while seized with this question as a Writ Court interference is permissible only when the punishment/penalty is shockingly disproportionate. In the facts and circumstances of the reported case, the majority of the Hon'ble Judges observed that the punishment of dismissal from service to one of compulsory retirement as was done by the Tribunal was found not proper. It was further observed that the Disciplinary Authority and on appeal the Appellate Authority being fact finding authorities have the exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of misconduct. The High Court/Tribunal while exercising the power of judicial review cannot normally substitute their own conclusion on penalty and impose some other penalty. If the punishment imposed by the Disciplinary Authority /Appellate Authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief either directing the Disciplinary Authority/Appellate Authority to reconsider the penalty imposed or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.

27. In Indian Oil Corporation Ltd. v. Ashok Kumar Arora, 1997 (2) JT(SC) 367, three Hon'ble Judges' Bench of the Supreme Court held that the High Court committed serious jurisdictional error in interfering with the quantum of punishment imposed on the employee. It was observed that there is a limited jurisdiction only where the enquiry is vitiated because of non-observance of principles of natural justice or denial of reasonable opportunity or no evidence is there or the punishment is disproportionate. That was a case where the High Court erred in interfering with the punishment awarded overlooking the findings of the Enquiry Officer that the respondent was instrumental in obtaining forged medical bill not only for himself but also for other employees and the order of the High Court reinstated the respondent-workman to his service and made him entitled to backwages by way of arrears of salary and allowances etc. to which he would have been entitled had he not been placed under suspension and dismissed from service. The Supreme Court observed that in such cases of departmental enquiries and the findings recounted therein, the High Court does not exercise the powers of the Appellate Court/Appellate Authority. The jurisdiction of the High Court in such cases is very limited for instance where it is found that the domestic enquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity, findings are based on no evidence and or the punishment is totally disproportionate to the proved misconduct of an employee. There is catena of judgments of the Supreme Court which had settled the law on this topic and it is not necessary to refer to all these decisions. Suffice it to refer to a few decisions of the Supreme Court in State of Andhra Pradesh v. S. Sree Rama Rao, (1964-II-LLJ-150) State of Andhra Pradesh v. Chitra Venkata Rao, (1976-I-LLJ-21) Corporation of City of Nagpur v. Ramachandra, (198l-II-LLJ-6) and Nelson Motis v. Union of India, (1992-II-LLJ-744). It was observed in the said reported cases that the High Court had committed serious jurisdiction at error while interfering with the, quantum of punishment. There is neither any discrimination resorted to by the Disciplinary Authority nor the punishment awarded to the respondent-employee was disproportionate to his misconduct and, therefore, the judgment and order of the High Court was found unsustainable.

28. The learned single Judge accordingly made a reference to a larger Bench on the following four points:

"(a) WHETHER if the misconduct is proved either in the domestic enquiry or before the Labour Court itself would not be a ground for non-interference with the order of discharge or dismissal by Labour Court in exercise of its power conferred under Section 11A of the Act of 1947?

(b) WHETHER there are definable parameters or recognised guidelines for exercise of jurisdiction of Labour Court, Tribunal or National Tribunal under Section 11A of the Act of 1947 where misconduct is proved either in the domestic enquiry or before the Labour Court, Tribunal or National Tribunal?

(c) WHETHER this Court in exercise of its supervisory writ jurisdiction under Articles 226 and 227 of the Constitution where a petition is filed seeking a relief to quash the award given by Labour Court, Tribunal or National Tribunal under Section 11A of the Act of 1947 has limited jurisdiction to demolish the impugned award which according to its opinion is palpably erroneous and remit the matter to Labour Court, Tribunal or National Tribunal for fresh disposal in accordance with law instead of substituting with its own award in place of one made by such Tribunal.

(d) WHETHER compensation to the extent of damage caused to an employer and to give an opportunity to a workman to reform himself by proving loyal and disciplined workman by adopting reformative theory are only relevant considerations treating Section 11A of the Act of 1947 as a beneficial piece of legislation of the Labour Court, Tribunal or National Tribunal are also required to address itself while passing an order for reinstatement after setting aside the punishment of discharge or dismiss a imposed by Disciplinary Authority about loss of reputation caused to the employer particularly in case of bus driver where the reputation of Corporation has been lowered down in the estimation of the passengers boarding the bus as well as public at large who saw the accident caused due to rash and negligent driving of the bus drivers; conduct and act inconsistent with his duty; act of conduct making it unsafe for the employer to retain his service; act or conduct of the workman so grossly immoral that all reasonable men may not like to keep in service; an act or conduct of the workman which may tend to disturb the peace at the place of employment; gross insubordinate behaviour of workman and his habitual negligence are also relevant considerations under the aforesaid Section?"

29. Our pointed discussion to the question on which the learned single Judge made a reference are accordingly as follows:--

(a) On the question whether on the misconduct being proved either in the domestic enquiry or before the Labour Court itself whether the Labour Court should while exercising its power conferred under Section 11A of the Industrial Disputes Act exercise a policy of noninterference with the order of discharge or dismissal, our answer is that there is no hard and fast rule. The Labour Court is vested with the discretion in the matter which is to be judicially exercised in the light of the earlier decisions of the Hon'ble Supreme Court as discussed above. The facts of each case may be distinguishable and may not be identical with the later one. It is more or less an acknowledged principle of law that where the Labour Court finds the punishment/penalty shocking the conscience, harsh or unreasonable, it is bound to act as a matter of course, but even otherwise it has the scope and ambit to appreciate as to whether it would exercise its discretion at all under Section 11A of the Industrial Disputes Act where the misconduct is proved but the ends of justice demands a lesser punishment in accordance with law. That is all about the Labour Court or the Industrial Tribunal exercising the powers under Section 11A of the Industrial Disputes Act where the misconduct is proved either before the domestic enquiry or before the Labour Court itself.

(b) On the question as to whether there are definable parameters or recognised guidelines for exercise of jurisdiction of the Labour Court or Tribunal or National Tribunal under Section 11A if the Industrial Disputes Act, 1947 where misconduct is proved either in the domestic enquiry or before the Labour Court or Tribunal or National Tribunal, we are of the considered view that such Labour Courts or Tribunals or National Tribunals have been exercising such jurisdiction to give appropriate relief in case of discharge or dismissal of workmen. Where in the course of adjudication of proceedings, such Labour Court, Tribunal or National Tribunal is satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case, only in such matters it can direct reinstatement of the workman on such terms and conditions as it thinks fit or give such other relief to the workman including the award of; any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. But it has to be borne in mind that such Labour Court, Tribunal or National Tribunal shall rely only on the materials on: record and shall not take any fresh evidence in relation to the matter. The powers of the Courts or Tribunals or National Tribunals under Section 11A of the Industrial Disputes Act are not arbitrary, unguided and uncanalised as was observed in Hospital Employees' Union v. Christian Medical College, (supra). Section 11A of the Act cannot be considered as conferring an arbitrary power on the Industrial Tribunal or the Labour Court. The power under Section 11A has to be exercised judicially and the Industrial Tribunal or the Labour Court is expected to interfere with the decision of a Management under Section 11A only when it is satisfied that the punishment imposed by the Management is highly disproportionate to the degree of guilt of the workman concerned. The Industrial Tribunal or the Labour Court has to give reasons for its decision. The decision of the Industrial Tribunal or the Labour Court is again subject to judicial review by the High Court and the Supreme Court. The Industrial Tribunal or the Labour Court cannot function arbitrarily and interfere with every decision of the Management as regards dismissal or discharge of a workman arrived at in a disciplinary enquiry. The power exercisable by the Industrial Tribunal or the Labour Court cannot, therefore, be equated with the power of 'veto'.

(c) On the third question referred to as to whether this Court in exercise of supervisory writ jurisdiction under Articles 226 and 227 of the Constitution where a petition is filed seeking a relief by way of quashing of award given by the Labour Court, Tribunal or National Tribunal under Section 11A of the Industrial Disputes Act has limited jurisdiction to interfere with the impugned award or not where according to the High Court such award is palpably erroneous and whether in such case it can substitute its own order in place of one made by such Labour Court, Tribunal or National Tribunal, the law is indeed clear. As a general rule, the High Court would not interfere unless the order of the Labour Court, Tribunal or National Tribunal is perverse or not based on any evidence or grossly illegal or based on a complete misconception of law or that no reasonable man would come to the conclusion to which the Labour Court, Tribunal or National Tribunal has arrived at. There is no hard and fast rule that it has always to send the matter back to the Labour Court, Tribunal, Tribunal or National Tribunal for appropriate adjudication and for passing appropriate punishment in accordance with law, but in order to avoid delayed justice and for vindication of speedy and appropriate relief, the High Court may in some cases incorporate its own findings which it may appear to be just and proper but that should not be followed as a general rule but more as an exception.

(d) We have applied our mind and we do not find any justification to answer the fourth question that taking any view the question of loss of reputation caused to the employer particularly in the case of bus driver which would put a fetter to the exercise of discretion which is vested in the Labour Court or Tribunal or National Tribunal under Section 11 of the Industrial Disputes Act, if the Labour Court, Tribunal or National Tribunal is satisfied that the order of discharge or dismissal was not justified, it may set aside the order of dismissal or discharge and direct the reinstatement of the workman on such terms and conditions as it thinks fit and proper and give such relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may justify without relying on any fresh evidence in relation to the matter. If in the facts and circumstances of the case the employee has been asked to recompensate the employer with the damage caused to the employer and give the workman an opportunity to reform himself, we do not find any justification to interfere or lay down any hard and fast principle that such an opportunity should never be given or that it was beyond the competence of a beneficial legislation like Section 11 of the Industrial Disputes Act. The loss of reputation of the employer is not always the prime consideration in this particular perspective, more so in a case of bus driver where the reputation of the RSRTC could not have been taken to lower down in the estimation of the passengers or public at large seeing the accident and also finding the reinstatement of the service of the workman despite his misconduct having been proved before the appropriate forum in this particular perspective, we need not answer the fourth question at all in the manner it has been posed because it needs no such reiteration of any principle by way of guidelines where it has no such basis in the eye of law. It if really appears before any fact finding forum including the Labour Court, Industrial Tribunal or National Tribunal that there is such an act or conduct making it unsafe for the employer to retain the workman in service or the misconduct is of such degree or magnitude or the conduct or act of the workman is so grossly immoral that he cannot be kept in service at all or an act or conduct of the workman is so which tends to disturb the peace at the place of employment if there is gross insubordinate behaviour of the workman and there is habitual negligence on the part of the workman, these may be appropriate considerations indeed to be kept in mind before the discretion under Section 11A of the Industrial Disputes Act is exercised by the Labour Court, Tribunal or National Tribunal, but what really constitutes a gross insubordinate behaviour or habitual negligence are also to be assessed in the facts and circumstances of each case and there may not be any blanket order in this regard within the fold of which we can cover every case so as to make the workman concerned disentitled to any relief on such a plea.

30. In the light of the discussion aforesaid our conclusion should be,--

(a) With regard to question (a) even if the misconduct is proved there can be an interference for good and sufficient reasons under Section 11A of the Act of 1947.

(b) With regard to question (b) the power under Section 11A has to be exercised judicially and the Labour Court, Tribunal or the National Tribunal is only expected to interfere with the decision of the Management only when it is satisfied that the punishment imposed is shockingly disproportionate to the degree of guilt of the workman concerned. It cannot be equated with the power or 'veto'.

(c) With regard to question (c) the High Court in its exercise of supervisory writ jurisdiction under Articles 226 and 227 of the Constitution of India has indeed a limited jurisdiction to interfere with the impugned award. As a general rule, the High Court will not interfere unless the order of the Labour Court, Tribunal or National Tribunal is perverse or not based on any evidence or grossly illegal or based on a complete misconception of law or it is such that no reasonable man would come to the conclusion about. There is no hard and fast rule that the High Court is always to send the matter back to the Labour Court or Tribunal or National Tribunal for appropriate adjudication and for passing appropriate punishment in accordance with law.

(d) With regard to question (d) we need not specifically answer the question because we think we should not look at the problem from the particular angle that the reputation of the Corporation has been lowered down in the estimation of the passengers boarding the bus as well as the public at large.

31. In the facts and circumstances of the present case, we have assessed the quantum of punishment that was initially passed to which the Labour Court has made an interference by exercising its discretion under Section 11A of the Industrial Disputes Act and we do not think that there is any gross illegality done so as to call for our inference as alleged or at all.

32. Both the writ applications accordingly stand dismissed.

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Rajasthan High Court - Jaipur